Evidently, the House is likely to pass a bill that would require states to respect concealed-carry permits issued in other states — even if the traveler’s home state has very different criteria for awarding a permit.

Concealed carry is a good idea, and so is reciprocity when states enact it voluntarily — but this is a bad idea, as it goes beyond the proper functions of the federal government. The stated constitutional justifications(PDF) for the law are to protect the Second Amendment (as applied to the states through the Fourteenth Amendment), to protect the right of interstate travel, and to protect interstate commerce, but none is even slightly convincing.

As the Supreme Court noted in its Heller decision(PDF), bans on concealed carry do not run afoul of the Second Amendment — they have a long history in the U.S., and courts have typically upheld them under the Second Amendment and state analogues. Thus, states have every right to decide the criteria by which they’ll grant permits (if they grant them at all), and to decide which other states’ permits they’ll respect. In fact, the exceptions written into the law itself — states that completely ban concealed carry don’t have to respect other states’ permits — show that no one takes this argument seriously; if carrying a gun in a state where you’re not licensed to carry is a Second Amendment right, why does it stop at the borders of the most anti-gun states?

While the Supreme Court has recognized a right of interstate travel, surely it doesn’t protect carrying items you’re not licensed to carry in the states you’re traveling to. And while Congress is notorious for abusing the Commerce Clause, I’m not seeing how concealed-carry permit holders’ not being able to carry while traveling “substantially affects” interstate commerce.

The only other justification for the law I can even think of is the “full faith and credit” clause, which requires states to respect each others’ “public acts, records, and judicial proceedings” — but this case would seem to fall under the “public-policy exception.”

And the Constitution aside, this is just bad policy from a conservative perspective, as it tramples on states’ rights. It’s almost an inverse of the Defense of Marriage Act — rather than allowing states to make their own laws and disregard licenses granted by states with different policies, it informs states that out-of-state travelers don’t have to play by their rules.

UPDATE: A commenter points me to Dave Kopel’s defense of the law(PDF). It doesn’t convince me the law is constitutional in the true sense, but it does convince me the law would likely hold up in court — apparently, once a gun moves in interstate commerce, the federal government can regulate it any way it pleases, under Supreme Court precedent.

UPDATE II: Other commenters make a good case for the “full faith and credit” clause. Its second sentence: “And Congress may by general Laws prescribe the manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.” So far as I can tell, not much has been written about the limits on this power of Congress’s. (Here, they have exercised considerable discretion in declaring that all concealed-carry licenses are valid in all states that respect such licenses, no matter how restrictive or liberal their criteria for granting them, and yet are not valid in states that don’t grant such licenses at all.) I’m surprised that the law’s drafters didn’t invoke this clause explicitly, though I still tend to think that states themselves should decide whether other states’ permits are granted according to acceptable criteria.

I am concerned about FedGov exercising powers of any kind related to gun ownership. Although it is wonderful to enforce protection of an absolute right, the power to enforce is the power to violate. The unique thing about the Feds is that once they violate a right there is no legal recourse (one could obviously engage in armed rebellion, but...). So I’m not quite so thrilled with pushing this kind of statute forward because that kind of latitude in the hands of the left is a perilous thing indeed.

The other 5% of the time, they should listen to the constituents who sent them there, and treat the legal code accordingly.

A proliferation of laws, regulations, and arcane specific bills that almost qualify for a “bill of attainder”, a gotcha for certain persons, making their very presence, whether they have committed some crime or not, anathema for the authorities.

That has been my concern as well. Get a leftist SCOTUS and they cancel everyone’s CCW in one fell swoop.
The carrying of firearms should not be licensed in the first place, regardless of how it’s done, precedent be damned.

Then would you also say that laws forbidding convicted felons from owning a firearm or young children or the mentally impaired from owning firearms would be unconstitutional as well? Or laws preventing the carrying of firearms into court houses or police stations or schools?

Concealed carry is a good idea, and so is reciprocity when states enact it voluntarily  but this is a bad idea, as it goes beyond the proper functions of the federal government.

Let's leave aside the Second Amendment for a moment and examine Article IV. Section 1: Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. (emphasis mine)

It sound to me exactly like the proper functions of the federal government under the US Constitution.

-- I have been told that, while "concealed carry" requires permission, "open carry" does not. --

The law varies state by state. Open carry is illegal in some locations, even (especially) for those who are licensed to carry concealed.

As for the premise of the OP, I agree the federal law is a bit of a joke, in that it does not require a state to admit carry - if a state forbids carry, then (goes the federal law), those are the terms that apply, period. And the law does noting to make uniform the regulations that pertain to "licensed" carry.

Federal second amendment jurisprudence is broken at a fundamental level, and not many people in the government dare to admit it. Lots of precedents built on utter falsehoods, rendered by judges, and Congress did/does squat about it.

-- Is there some federal law that says Tennessee has to recognize my Georgia drivers license? Just a curious thought... --

Not any statutory law, that I know of. The "full faith and credit" relating to marriage is obtained via court rulings. E.g., see difference in age requirements. But a legally married 13 or 14 year old is still married after moving to a state with a 16 or 18 year age requirement.

Reciprocity agreements between the states are a states prerogative, and having the federal government try to force reciprocity is inviting the camel into the tent.

Just today, in the senate, a bill was introduced to force reciprocity with respect to homosexual marriage. The Democrats figure on playing that off against the Houses gun reciprocity bill. “You vote for ours and we’ll vote for yours.”

So sorry, it’s just a bad idea to invite the federal camel into the tent. As much as you might like the convenience of camel milk, you’ll have to deal a lot more with camel poop.

-- It sound to me exactly like the proper functions of the federal government under the US Constitution. --

I don't think concealed carry is (or should be) a matter of public records; like marriage is. The default condition is a right to keep and bear arms. Do you need a license to practice religion? Speak? Publish? Petition the government?

It is the full faith and credit clause. Otherwise you would need to obtain a driver’s license whenever you transit a state. I am sure that if California thought that they could get away with it they would require a transit permit. They already force people who drive in California a certain amount of time to obtain a California license plate. Yes, if you live in Arizona, which requires an Arizona license for vehicle owned by residents and used on it’s roads, and work and drive in California a certain amount, you must obtain a California license plate; but not a driver’s license. Even California won’t try that. So I can see this being appropriate.

I don’t agree. Its a stupid argument. Under the 14th Amendment, Congress has the undisputed power to pass a federal law to ensure the unimpeded exercise of the rights guaranteed to Americans and that includes the 2nd Amendment. States’ rights are not absolute. And Congress has the power to ensure all states grant reciprocal treatment to the laws, judicial proceedings and records of other states. Robert Verbruggen thinks the only group of people whom states should be permitted to discriminate at will against are gun owners. Either Congress can ensure every one can freely exercise their rights or there’s no point to the Constitution. By the way, states’ rights has always been a hoary doctrine used to justify slavery and then the wholesale denial of constitutional rights to certain Americans based on their race. It won’t wash - not in this day and age.

Then would you also say that laws forbidding convicted felons from owning a firearm or young children or the mentally impaired from owning firearms would be unconstitutional as well?

That's the way it was throught the first century of American freedom. The first law limitiong the ownership/carry of firearms by former prisoners who had paid their debt to society was instuted in California around the 1920s. It's a relatively recent concept.

A few states don't require any permit for carrying arms any way one pleases. There's no "thing" (compared with drivers license & marriage/birth record) to give full faith and credit to; for people who live in VT, AK, AZ and WY.

Getting the feds involved will lead to trouble. The federal government is as dishonest and untrustworthy as government can get, when it comes to the RKBA.

No, reciprocity is an “affirmative agreement”, which means that citizens can enjoy the greater benefit between states, not restrictions.

This was recently at issue in Arizona, as no permit of any kind was required, but the state needed to provide a permit to anyone who wanted one to prove in another state with a reciprocity agreement with Arizona that they didn’t need a permit, even if in that state they needed a permit.

While the Supreme Court has recognized a right of interstate travel, surely it doesnt protect carrying items youre not licensed to carry in the states youre traveling to. And while Congress is notorious for abusing the Commerce Clause, Im not seeing how concealed-carry permit holders not being able to carry while traveling substantially affects interstate commerce.

Find me ANY other time you found the Congress Clause to conflict with any federal notion, particularly if it concerns some liberal statist wet dream, and I'll take your "article" seriously. Otherwise, STFU, statist scum!

28
posted on 11/14/2011 6:22:30 PM PST
by Still Thinking
(Freedom is NOT a loophole!)

Then would you also say that laws forbidding convicted felons from owning a firearm or young children or the mentally impaired from owning firearms would be unconstitutional as well? Or laws preventing the carrying of firearms into court houses or police stations or schools?

Those prohibitions aren't exactly analogous to a licensing scheme. Even so, yes, the case can and has been made at least WRT felons that those rights SHOULD be automatically restored with the rest of their civil rights.

29
posted on 11/14/2011 6:29:23 PM PST
by Still Thinking
(Freedom is NOT a loophole!)

Over 10% of the US population has no access to concealed carry. This is in part a way to knock those barriers down when Californians will be able to carry in CA with an OR or NV non-resident permit as this bill allows.

The Act relies on the commerce clause and the “right to travel” as its constitutional justification. I admire the goal. But do we really think it is within the enumerated powers of Congress? I think it could be justified as a Congressional protection of the right to keep and bear arms. But the congress critters avoided that for some reason.

“’And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.’ It sound to me exactly like the proper functions of the federal government under the US Constitution.”

Good argument. Too bad congress didn’t write that into the Constitutional justification.

OK back up a minute. Some of these comments bring up Cali as if there are no CCW’s issued here. That is not true. I live in one of the far northern counties where a permit is not too hard to get. The LE in the cities don't like it but tuff stuff they have no choice. Ca refuses to recognize permits from other states because the majority of the counties and the socialist state government does not want folks walking around armed. Because cali doesn't recognize the permits from other states no other state recognizes a CCW issued in Ca. I am in the process of finding another state who will issue a CCW to people who do not live in their state and has reciprocity with many states on concealed carry.

35
posted on 11/14/2011 9:25:24 PM PST
by oldenuff2no
(Rangers lead the way...... Delta, the original European home land security)

Needing a permit to carry a weapon is an infringement. Being unable to open carry is an infringement.

Its unconstitutional for States to have these kinds of laws, let alone Congress enacting one.

It's unconstitutional for the FEDERAL government to make such an infringing law. STATES are to have reserved to them the several rights not reserved or declared by the federal government. For example, while CONGRESS cannot make a law establishing a particular religion, any state can (and many have) establish or encourage a particular religion over another.

-- This is in part a way to knock those barriers down when Californians will be able to carry in CA with an OR or NV non-resident permit as this bill allows. --

I think you have been misinformed. "H.R. 822 allows for carry in any state except for Illinois and the state of ones residence." That is from http://gunowners.org/a111411.htm.

In part, this bill appears to be an attempt to repair flawed judicial reasoning, in particular, corrupt application of the Supreme Court's Presser case. The Presser case says states may NOT infringe the RKBA. Federal courts have uniformly applied the Presser case for the opposite, as allowing states to infringe the RKBA. Total, absolute, abject corruption by the Courts - and it is easy as pie to see for anybody who looks.

If your only reason for supporting the law is to give residents of (for example) CA the ability obtain an out of state license so they can carry in CA, then you should be neutral toward or against the bill, because it does not enable that function.

That's the way it was throught the first century of American freedom. The first law limitiong the ownership/carry of firearms by former prisoners who had paid their debt to society was instuted in California around the 1920s. It's a relatively recent concept.

Do you agree or not? If a person goes to jail for armed robbery, for example, then should they have the right to buy a firearm once they get out of jail? If a person has been judged mentally incompetent to stand trial, or if they have mental retardation or seriously diminished mental capacity, then do they have the right to own a firearm?

Then if we can agree that the right to own a firearm should be as restriction-free as possible but still is not an absolute right, then shouldn't the states be the ones deciding when and upon who that right should be restricted and not the federal government?

Even so, yes, the case can and has been made at least WRT felons that those rights SHOULD be automatically restored with the rest of their civil rights.

If someone goes to jail for shooting someone or for taking a gun and sticking up a liquor store or for any other violent crime then I'm not sure I want them to be able to carry a firearm when they get out. You, on the other hand, may disagree and there nothing wrong with that. I may want a person getting a concealed carry permit to go through a training course before being issued the permit. You, on the other hand, may feel that such training isn't necessary and that's fine, too. I may not be comfortable with people being free to bring a concealed firearm into a police station or a football stadium. Again, you may disagree and there is nothing wrong with that. But in any case, if any sort of restriction is to be placed on who can carry a gun and where I'd rather those restrictions were made at the state level and not the federal. This law goes against that.

I agree with you...It has alway been a rub to me that if I want to carry a firearm for lawful self-defensive purposes, that I have a unalienable, moral right to do so as stated in the Second Amendment, that that right is granted by an authority higher than ANY government instituted amoung men (and women) in this country...

Every chance that the Texas legislature tries to reduce, or limit the feduciary responsibility for Texans to obtain this states CHL “license”, I support with the upmost enthusiasm and fervor...

When I had to stop at the border of California in Yuma, and disarm and render the carry piece I had on me usless away from any semblance of readiness, I wanted to throw up...

I think its due time we get in the face of those that want to take away such rights, to those of us that understand and value the gift and defense of life, in the ability to take a life to protect it...

My last statement sounds ironic, but it is a truth we need to embrace, because we already do it everytime we take on the responsibility and more important, to be accountable for our actions when we do exercise our right to keep and bear arms...

The Federal argument to this issue is so simple, they have to do this to make it seem like it is a difficult decision to ALLOW us to utilize a precident to recognize these damn licenses that we HAVE to buy to exercise such a natural moral right...

The opposition knows for a fact that if we do get this commerce clause recognition of these licenses, that the Genie is out of the bottle, and it is very difficult to put it back in if some force of this government feels it is necessary to do so...

The attempt to take back this extention would be the equivalent to reversing the Emancipation Proclamation...Imagine the absolute travesty that would be...And I would fight that effort with my life...

Time to pony up people...We don’t get chances like this, especially with the people running the show these days...

We know without a doubt what Obama would do with this if it crosses his desk...Lets press the issue anyway...Force him to prove to us what we already know...Give whomever is going to defeat this administration some ammunition for the next election cycle...

Fine, I'll play your stupid game. Yes, they STILL have those Rights. That is what "inalienable" means.

Now, in a fully armed society with more people taking personal responsibility for their own protection, you'd have a FRACTION of the people we do today surviving to reach trial. Those adjudicated to be too dangerous, via criminality or mental issues, should be locked up for life. Again, assuming they survive their initial encounter with their intended victim.

Now, stop fighting the Gun Grabbers battles for them by carrying their water with these specious arguments...

even if the travelers home state has very different criteria for awarding a permit.

Thing is...they don't. They all have the same fundamental criteria: register, and don't be a criminal. The differences stem from varying degrees and tactics for infringing on the fundamental right, and thus are indefensible.

Every state that issues possession/carry permits does so contingent upon, at core, a criminal background check. This is rendered nigh unto moot by the federal NICS check, which does the same thing. Some states may dig into more records in an impassioned attempt to suppress the right. Some states may tack on other criteria such as training (to wit: "The Four Rules" and basic mechanical operation of a point-and-click interface, rendered as complex and time-consuming as possible), background checks (as if some applicant might not know three people willing to vouch for him), usage restrictions (now that he's got it, if he's going to abuse it a few words on paper won't stop him), and other high-horse heavy-handed tactics for discouraging people from an enumerated inalienable right. Fact is, regardless of the differences in licensing, so long as there IS a license there is NOTHING of substance rendering an out-of-state permit inferior to an in-state one.

I have a carry permit for NY and GA. Short of "Constitutional carry", there is no meaningful difference. Both were issued subject to FBI and other background checks, fingerprints included. Both are monitored for legality. Both allow carry/transport of dangerous machines which are, for all practical purposes, fungible. Both regard objects which are already subject to strict commerce regulations. Short of a differing collection of hoops to jump thru to obtain and retain one, there is no practical difference.

And that leaves "Constitutional carry" states. There is no reason Vermont should be left out. Fact is, the whole point of documented licensing for carry/possession is an unconstitutional preemptive presumption of guilt over innocence. While the famous case excusing felons from CCW registration on grounds of 5th Amendment violation was overturned, methinks the premise remains true: save for a vanishingly small margin, anyone who applies for a permit is exactly who should NOT be required to have one, and anyone who should be refused one (i.e.: convicted felons et al) has an enumerated right against self-incrimination - ergo the whole process is pointless. So residents of Vermont, Alaska, and Wyoming who would, as residents elsewhere, have no trouble getting a permit as required (save for malicious suppression of rights) are as normal American citizens due the presumption of innocence, have already been in all likelihood already subject to relevant criminal background checks, and thus as citizens enjoy the right (at minimum) to exercise their RKBA in any state insofar as any licensed resident thereof may, having been extended full faith and credit in their home state's right to possess lawful items obtained in a lawful manner, and carry them in a lawful manner according to the host state's fair regulations.

That a Leftist/socialist/oppressive legal doctrine has been entrenched for a prolonged period does not render it a Conservative value.

Revocation of natural inalienable enumerated rights MUST happen on a per-case adjudication thereof, to wit you have the right until a judge tells you in no uncertain terms that you’ve lost it. What we have now is the reverse: in most states, the right is preemptively denied UNTIL adjudicated as allowed on a per-case basis - this is, of course, despicable.

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